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Vol. 3 No. 170 Decisions Released Sept. 8, 1995 STATE COURT CASES INSURANCE — JUA — UNINSURED MOTORIST COVERAGE 23-2-6486 Lorraine Ainsworth v. State Farm Mut. Ins. Co., et al. App. Div. (21 pp.) (1) Since the JUA qualifies as an insolvent insurer in the context of N.J.S.A. 17:28-1.1(b), plaintiff may proceed directly against her UM carrier rather than wait for payment under the JUA deferral plan. (2) Although moot in this case, the court further holds that the trial judge erred in compelling the insurance carrier to arbitrate the UIM claim before plaintiff’s underlying action against the tortfeasor was finalized by an offer of settlement of the policy limits or a judgment exhausting the policy limits. [Approved for publication Sept. 8, 1995.] 23-2-6487 Rose Gattuso, et al. v. Admiral Ins. Co., App. Div. (13 pp.) Where default judgment had been entered in plaintiffs’ federal personal injury suit against insured packager and distributor of charcoal lighter fluid, the judge’s dismissal of the plaintiff’s state complaint against the insurance carrier, seeking payment of the judgment, was erroneous, since the carrier failed to sustain its burden of proving that the insured’s failure to give the carrier notice of the federal litigation substantially prejudiced the carrier, such that a disclaimer of coverage was appropriate. NEGLIGENCE — DEFECTIVE DESIGN OF SKATING RINKS 31-2-6488 Joan Ross, et al. v. Brick Roller Skating Ctr. Inc., etc., et al., App. Div. (3 pp.) Trial court correctly dismissed plaintiff’s negligence suit against roller rink for injuries sustained when she fell as she skated off the rink floor, through an entry way cut into the wall, and onto carpeting, since there was nothing in the expert’s report establishing a specific defect that caused or contributed to plaintiff’s fall. PUBLIC EMPLOYEES — SENIORITY 33-2-6489 In the Matter of Philip Pearlstein, App. Div. (7 pp.) The court affirms the final decision of the state Commissioner of Personnel, determining that employee was entitled to seniority calculated from his most recent permanent appointment to his title, which he took via a voluntary demotion, and his seniority should not be calculated back to the date when he first held that same position, despite the employee’s belief that his seniority would be retroactive and despite the fact that a personnel department employee mistakenly confirmed the retroactivity in a letter (which mistake was later corrected in another letter.) FEDERAL COURT CASES INSURANCE — POLLUTION EXCLUSIONS 23-7-6490 NL Indus. Inc. v. Commercial Union Ins. Co., et al., U.S. Dist. Ct. (12 pp.) Partial summary judgment is entered in favor of two insurers in plaintiff’s suit for coverage of certain pollution claims; since both insurance policies contain clear, unambiguous, valid and enforceable “absolute” pollution exclusion clauses, the claims fall within the exclusions and are not brought within coverage by any exceptions. INTELLECTUAL PROPERTY — PATENTS 53-7-6491 Rheox Inc. v. United Catalysts Inc., et al., U.S. Dist. Ct. (19 pp.) In a suit where plaintiff–a patent holder for manufacturing process of a thickening agent used in paints, cosmetics and ink–seeks injunctive relief against defendants, defendants’ cross-motion for summary judgment is granted, since defendant has proved by clear and convincing evidence that plaintiff’s patent is “anticipated by prior art,” and is, therefore, invalid. JURISDICTION 24-7-6492 Lucas Indus. Inc., et al. v. Kendiesel, Inc., et al., U.S. Dist. Ct. (16 pp.) In a trademark infringement suit, where plaintiff alleged that various defendants were selling counterfeit products containing plaintiff’s logo, motion to dismiss amended complaint against defendant Ladenall Ltd. is granted, since there is absolutely no record evidence that Ladenall ever sold a single unit bearing the plaintiff’s logo, and, therefore, plaintiff has failed to prove that Ladenall, a British corporation, has sufficient contacts with the forum state to establish personal jurisdiction over the company. REAL ESTATE — ANTITRUST — BROKERS 34-7-6493 Venture Resources Group, Inc. v. Greater N.J. Regional Multiple Listing Serv. Inc., et al., U.S. Dist. Ct. (19 pp.) (1) Since plaintiff has failed to demonstrate a likelihood that it will succeed in proving that defendants have created an unreasonable restraint of trade violating antitrust laws by conditioning access to their multiple listing services upon membership with a local realtors board, and since plaintiff has failed to demonstrate that it will be irreparably injured if injunctive relief is denied, the relief is denied to plaintiff. (2) Defendant’s application for injunctive relief against plaintiff, seeking to enjoin plaintiff from continuing to intimidate and harass defendants’ witnesses, is granted, together with attorneys’ fees and costs incurred in connection with this application. REAL ESTATE — LAND SALES — RICO 34-7-6494 Jose Rolo, et al. v. City Investing Co. Liquidating Trust, et al., U.S. Dist. Ct. (21 pp.) On remand of this matter from the Third Circuit so that the court could reconsider its dismissal of plaintiff’s RICO claims (for alleged fraudulent land sales transactions) in light of the recent decision in Jaguar Cars Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir. 1995), (1) although the Jaguar ruling requires modification of the dismissal order as to one of the grounds, since other grounds for dismissal of the RICO claims were unaffected by Jaguar, and since Jaguar had no bearing upon a prior dismissal of Land Sales Act claims, Securities Act claims, and common law fraud claims, a new dismissal order as to all defendants will be entered, and, (2) since the remand order did not contemplate that plaintiffs be allowed to reformulate and restructure their action through the vehicle of an amended complaint and the addition and deletion of parties, the application to amend is denied. [For publication.] END

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